As class actions brought under Illinois’ Biometric Information Privacy Act (“BIPA”) proceed through litigation, defendants have made a variety of arguments attempting to push courts to define the limits of the somewhat vague statute. The Illinois Supreme Court’s 2019 decision in Rosenbach v. Six Flags Entertainment Corp. was the first opinion to provide interpretive guidance of BIPA, and specifically, what type of injury is required for a person to have standing to bring a private right of action under the statute. (We explain BIPA and the Rosenbach opinion here.)

Another argument being raised by defendants, which has now received the attention of the Illinois Appellate Court, is that BIPA claims that arise in the employment context—typically based on an employer’s use of biometric time clocks—are preempted by the Illinois Workers’ Compensation Act (“IWCA”), 820 ILCS 305/ et seq.

The IWCA has an exclusivity provision, which states the IWCA provides the exclusive remedy for “accidental injuries sustained by any employee arising out of and in the course of the employment.” 820 ILCS 305/11. It also provides that an “employee has no common law or statutory right to recover damages from the employer … for injury or death sustained by any employee while engaged in the line of his duty as such employee, other than the compensation herein provided.” 820 ILCS 305/5.

Employers who have been sued under BIPA for requiring employees to scan their fingerprints in connection with the employer’s use of biometric time clocks have relied on these two provisions of the IWCA to argue the BIPA claim is preempted. Specifically, they argue that an alleged violation of BIPA, which creates a statutory right of privacy over an individual’s biometric information and identifiers, is properly characterized as an injury arising out of and in the course of employment, at least when it is premised on an employer’s use of a biometric timeclock.

Not all courts faced with this argument have bought it, but at least one has concluded that “[w]hether a statutory privacy claim is preempted by the Workers Compensation Act remains unsettled.” In McDonald v. Symphony Bronzeville Park, LLC, Circuit Court No. 17-CH-11311, Judge Raymond W. Mitchell granted Defendant Symphony Bronzeville Park LLC’s motion to certify the question for immediate appeal. The Illinois Appellate Court granted Symphony’s application for leave to appeal on December 19, 2019, and the question of whether the IWCA preempts a BIPA claim based on an employer’s alleged violation of BIPA is now being briefed by the parties.

Now that the potentially dispositive question of IWCA preemption is pending on appeal, some defendant-employers have been requesting trial courts to stay BIPA cases while the Illinois Appellate Court considers McDonald. Again, trial courts have been split. Some grant the stays, while others do not. Plaintiffs argue that BIPA is largely untested, such that there will be an appeal about every issue raised, creating constant delays if cases in the trial courts are stayed every time there is an appeal. Defendants point to the dispositive nature of the IWCA preemption question, and the conservation of judicial resources achieved by a stay. Who wins appears to be based on the luck of the draw, in terms of the inclination of the trial judge deciding the motion to stay. Nevertheless, it’s a strategy worth considering by defendant employers who wish to gain clarity on the IWCA preemption issue before expending the time, energy, and resources on litigating a BIPA class action.

The appeal is Marquita McDonald v. Symphony Bronzeville Park, LLC, No. 1-19-2398, pending in the Appellate Court of Illinois, First District.